RIGHTS OF WAY AND RIGHTS TO PARK

CREATION AND EXTENT

BY

DAVID HOLLAND INTRODUCTION

1. In this paper I would like to recap the ways in which private rights of way can arise, then look at

easements to park and finally look at how these principles have been dealt with in three

comparatively recent cases: KENT V KAVANAGH [2001] Ch1, MONCRIEFF V JAMIESON [2007]

UKHL 42 and SAFESTORE V RSN [2009] PLSCS 292.

2. The law of easements has practical implications for a large number of landowners. Recent Land

Registry figures suggest that at least 65% of freehold titles are subject to one or more easements.

These interests can be fundamental to the enjoyment of property. For example, many

landowners depend on easements in order to obtain access to their property and indeed rights

of way and the more modern phenomenon, a right to park, are the types of easement most

frequently encountered in practice.

3. It is well established in the well known case of RE ELLENBOROUGH PARK [1956] Ch 131 (at 163)

that a right cannot be an easement unless four requirements are satisfied:

(i) there must be a dominant tenement and a servient tenement;

(ii) the easement must accommodate the dominant tenement;

(iii) the dominant and servient tenements must be owned by different persons; and

(iv) the easement must be capable of forming the subject matter of a grant.

In practice there is little difficulty with the application of these principles in relation to rights of

way. However there has been a debate as to whether a right to park can fulfil the fourth

criterion. It is a debate which I believe has now been resolved in favour of such a right being

recognised as an easement. However there must still be some doubt as to its exact ambit.

4. All easements are deemed to “lie in grant”, that is to say they must be granted expressly,

impliedly or by prescription. In the case of implied and prescriptive easements there is no

express grant, but the grant is nevertheless assumed or presumed. I shall examine each of these

methods in turn.

EXPRESS CREATION

5. An easement is an “incorporeal hereditament”; that is, it belongs to a defined list of rights

recognised by the law of property as being, like land itself, a species of “real property” to which

the rules of land law apply. If created expressly, such rights should be granted by deed if they are

to take effect as legal interests: Law of Property Act 1925 section 52. They can also be granted by

written instrument, provided that the instrument complies with section 2 of the Law of Property

(Miscellaneous Provisions) Act 1989. However, if the written instrument is not also a deed, then

they would only take effect as equitable interests.

A WORD ABOUT INTERPRETATION

6. Until recently, the view had been that there were somehow special rules applicable to the

interpretation of transfers of land. For example in SCARFE V ADAMS [1981] 1 All ER 843 (at 851)

Griffith LJ had set a limit to the situations in which extrinsic evidence was available to interpret a

transfer of land:

“The principle may be stated thus: if the terms of the transfer clearly define the land or

interest transferred extrinsic evidence is not admissible to contradict the transfer. In such a

case, if the transfer does not truly express the bargain between vendor and purchaser, the

only remedy is by way of rectification of the transfer”

7. However, in Moncrieff v Jamieson (at paragraph 113) in relation to implication of rights in a

conveyance, Lord Neuberger stated that the conceptual basis of implication is rooted in the

general law of contract:

“That principle is that the law will imply a term into a contract, where, in the light of the

terms of the contract and the facts known to the parties at the time of the contract, such a

term would have been regarded as reasonably necessary or obvious to the parties.”

8. Lord Neuberger’s references to contract have been said to be indicative of a growing judicial

tendency “to rest the right to an easement on supposed intention of the parties to the contract

or, if there was no contract, on the intention of the testator or grantor”- see GALE ON

EASEMENTS (17th edition para 3-120). Further evidence of this tendency can be seen in ADAM V

SHREWSBURY [2006] 1 P&CR 27 where Lord Justice Neuberger (as he then was) said (at

paragraph 28):

“In my judgment, therefore, the resolution of the issue raised on the present appeal turns on

the proper analysis of the common intention of the parties, as gathered from the terms of

the conveyance, the position on the ground, and the communications passing between the

parties before the execution of the conveyance, which would include the provisions of the

contract. Although this court excluded as legally irrelevant any communications between the

parties outside the conveyance (unless, of course, there is a claim for rectification) in Scarfe v

Adams [1981] 1 All E.R. 843 at 851, it seems to me that such a conclusion is inconsistent with

the general principle that when construing a document (whether or not it relates to land) all

the surrounding circumstances should be taken into account. That this aspect of Scarfe's case

is not the law was decided by this court in Partridge v Lawrence [2004] 1 P. & C.R. 176 at 187”

(emphasis added)

9. Thus the current position seems to be that there are few if any special rules applicable to the

interpretation of documents said to create easements. When examining a document to see

whether, for example, a vehicular (as opposed to a pedestrian) right of way has been granted or

to ascertain the width or exact route of a right of way one applies the general principles set out

by Lord Hoffman in ICS V WEST BROMWICH BS [1998] 1 WLR 896. In order to divine the intention

of the parties, one starts with the words of the conveyance and any plan annexed to it and one

can then look at the situation on the ground at the date of the conveyance and (even) any

contemporaneous documents. As Moore-Bick LJ said in the very recent case of TETG

DEVELOPMENTS V NOAH [2008] EWCA Civ 259 (at paragraph 12):

“The primary task of the court in a case of this kind is to construe the grant itself. But it is

common ground that, in doing so, the court is entitled to take into account not only the

language of the grant but also the plan attached to it and evidence by way of background of

the condition of the land at the time of the grant and other matters including, in this case,

documents submitted for the purposes of obtaining planning permission…”

10. The only rule of construction peculiar to easements appears to be as follows. An easement may

be created by express grant or by express reservation. In the case of a grant, the rule that a

grantor may not derogate from his or her grant is applied, and the grant is interpreted against

the grantor (see e.g. WILLIAMS V JAMES (1867) LR 2 CP 577. In the case of a reservation,

although one would expect the words to be interpreted similarly, that is, against the person

making the reservation, the currently accepted position, as set out by the Court of Appeal in the

case of ST EDMUNDSBURY & IPSWICH V CLARK (No.2) [1975] 1 WLR 468 is that a reservation of

the easement by a vendor of land is to be interpreted against the purchaser on the basis that the

purchaser is treated as the grantor.

11. In that case, an easement was reserved on a 1945 conveyance of a portion of land by the Church

to Mr Clark. The conveyance was expressed to be “subject to a right of way over the land

coloured red on the plan to and from [the] Church”. The scale plan indicated that the red land

equated to an area approximately nine feet wide. The conveyance did not expressly state

whether a pedestrian right of way or a more extensive vehicular right of way was intended. The

Court of Appeal held that, interpreting the conveyance in light of the surrounding circumstances,

it was clear that a pedestrian right of way only was being reserved, and the appeal was

dismissed. However the Court declared (albeit obiter) that, in view of reservation still being

based on re-grant, the words of the easement should still, in cases of ambiguity, be interpreted

against the purchaser and in favour of the vendor. The Court did emphasise however that this

was to be a recourse of last resort in cases when the other principles of contractual

interpretation still lead to genuine ambiguity.

RIGHTS OF WAY BY IMPLICATION

12. An implied easement is an easement that comes into existence upon a disposition of land

without having been expressly created by the parties to that disposition. Implied easements are

most likely to arise when land has been divided into two parts and either one or both parts are

sold or let.

13. When seeking to ascertain whether an easement has been implied it is however, important to

work out whether the claim being made is to an implied grant or an implied reservation. An

implied grant may occur where A sells or lets land to B retaining some neighbouring land of his

own. If B contends that she has an easement over A’s land which is neither express nor

prescriptive, the claim must be on the basis of an implied grant. An implied reservation may

occur if A contends that he has an easement over B’s land (for the benefit of the land which A

has retained), and no such easement has been expressly reserved or prescriptively acquired. As a

general rule, the law is readier to imply a grant than a reservation. As Lord Justice Thesiger stated

in the seminal case of WHEELDON V BURROWS (1879) LR 12 Ch D 31 (at 49):

“if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve

it expressly in the grant.”

14. There are four methods by which easements can be created by implication. The first two

methods take effect only on grant; the second two can take effect both on grant and on

reservation. They are:

(i) The rule in Wheeldon v Burrows;

(ii) Section 62 of the Law of ProPerty Act 1925;

(iii) Easements of necessity; and

(iv) Easement of intended use.

The rule in Wheeldon v Burrows and section 62 of the Law of Property Act 1925 both give rise to

the acquisition of easements as a result of use of the grantor’s land prior to the relevant

transaction. They are therefore broadly based on the past exercise of particular rights.

Easements of necessity and easements of intended use, on the other hand, are forward looking.

In each case the court is required to examine what the parties to a transaction were

contemplating in terms of the future use of the properties in question. I shall deal briefly with

each in turn.

The rule in Wheeldon v Burrows

15. In 1878, Lord Justice Thesiger set out the rule as follows:

“on the grant by the owner of a tenement of part of that tenement as it is then used and

enjoyed, there will pass to the grantee all those continuous and apparent easements (by

which, of course, I mean quasi easements), or, in other words, all those easements which are

necessary to the reasonable enjoyment of the property granted, and which have been and are

at the time of the grant used by the owners of the entirety for the benefit of the part

granted.”

16. The rule sets out the circumstances in which easements may be impliedly granted where the

dominant and sentient lands were previously owned by the same person. It is said to be based on

the doctrine of non-derogation from grant (see e.g. SOVMOTS V SEC. OF STATE [1979] AC 144).

17. The following three requirements must be satisfied in order for there to be an implied grant

under the rule:

(i) The right must be “continuous and apparent”. This is taken to mean that it is

“seen on inspection” and “is neither transitory nor intermittent”.

(ii) The right must be necessary to the reasonable enjoyment of the property

granted. Necessity is not as narrowly interpreted as it is in the context of

easements of necessity. The question is whether the right will contribute to the

enjoyment of the property for the purpose for which it was transferred.

(iii) At the time of the grant the quasi-easement was being used by the common

owner for the benefit of the part granted.

(iv) The land granted and the land retained must have been in both common

ownership and common occupation before the grant.

18. One should note the following points:

(i) The rule can only grant as easements rights that are capable of fulfilling the

requirements of an easement. It cannot transform rights that do not satisfy the

necessary characteristics into easements.

(ii) The estate transferred may be legal or equitable. If an easement is implied, it will

assume the same status as the estate that was transferred and to which it

pertains. For example, if the estate transferred was an equitable lease, the

easement will be equitable too.

(iii) The transfer of the land from the common owner may be a sale, a devise or a gift.

It does not therefore have to be for value. However, it must be voluntary (as

opposed to being made pursuant to the exercise of compulsory purchase

powers).

Section 62 of the LPA 1925

19. Section 62(1) of the 1925 Act provides that a conveyance of land shall be deemed to include and

shall operate to convey, with the land:

“all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-

courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or

reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised,

occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the

land or any part thereof.”

Whilst section 62 (2) provides:

“A conveyance of land, having houses or other buildings thereon, shall be deemed to include

and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all

outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters,

drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and

advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other

buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance,

demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant

to, the land, houses, or other buildings conveyed, or any of them, or any part thereof.

20. The following conditions must be fulfilled for section 62 to operate:

(i) The right must have been exercised over land retained by the grantor;

(ii) The right must have been appurtenant to or “enjoyed with” the quasi- dominant

tenement;

(iii) The right must have already been enjoyed “at the time of the conveyance”;

(iv) The conveyance must be of a legal estate;

(v) The dominant tenement and the servient tenement must have been in separate

occupation prior to the grant.

21. However, the operation of the section is subject to the following important limitations:

(i) The right in question must be capable of being an easement;

(ii) The grant must be within the competence of the grantor;

(iii) The user must not be excessively personal, excessively precarious, merely

temporary or a “mere memory”; and

(iv) The section applies only in so far as a contrary intention is not expressed in the

conveyance.

22. The point about section 62 is that it is capable of converting what have hitherto been merely

precarious benefits or mere informal licences into permanent property rights. Take the facts of

HAIR V GILMAN (2000) 80 P&CR 108. In that case L allowed T, her tenant, to park her car

anywhere on the forecourt owned by L in front of the demised property, although there was no

express term to this effect in the tenancy agreement. Subsequently, T purchased the freehold of

the property she had leased (but not the forecourt) from L. The conveyance of the house was

silent on parking rights, but it did not expressly exclude the operation of section 62. T was held to

have acquired an easement to park on the forecourt retained by L for the same duration as the

freehold estate which T has obtained. It was irrelevant that neither L nor T contemplated that L

allowing T to park during the term of the lease would have this result on the conveyance of the

freehold.

23. In general terms, it is easier to succeed under section 62 than the rule in Wheeldon v Burrows as

there is no need to prove either that the right was continuous and apparent or that it was

necessary for the reasonable enjoyment of the property conveyed. However, as a counsel of

prudence, it is often sensible to base a claim on both methods of implication in the alternative.

Moreover, in the absence of a “conveyance” triggering section 62, the rule in Wheeldon v

Burrows may be the only recourse available to the person claiming an easement.

Easement of necessity

24. An easement of necessity is implied only where the right is essential for the use of the land

granted or retained. The question is not whether it is necessary for the reasonable enjoyment of

the land but whether the land can be used at all without the implied grant or reservation. A claim

will only be successful where the land is “absolutely inaccessible or useless” without the

easement (see e.g. UNION LIGHTERAGE V LONDON GRAVING DOCK [1902] 2 Ch 577). An

easement will not be implied by this route merely because it makes it more convenient to use

the land. For example a a right of way will not be implied by necessity where there is some other

means of access, even if that route is difficult and expensive to use (see e.g. BARRY V HASELDINE

[1952] Ch 835).

25. The most obvious example of a situation in which an easement of necessity may be implied is

where a grantor conveys an entire plot of land except for a piece in the middle, which is

completely surrounded by the part conveyed. Unless the reservation of a right of way over the

land granted is implied, the land in the centre would be completely landlocked.

Easements of intended use

26. The classic statement here is that of Lord Parker in PWLLBACH COLLIERY V WOODMAN [1915] AC

634 (at 646-7). His Lordship grouped implied easements under two heads: first, those implied

because they are ancillary to rights expressly granted;107 and, second, those implied because

they are necessary to give effect to the manner in which the land retained or demised was

intended to be used:

“The law will readily imply the grant or reservation of such easements as may be necessary to

give effect to the common intention of the parties to a grant of real property, with reference

to the manner or purposes in and for which the land granted or some land retained by the

grantor is to be used. . . . But it is essential for this purpose that the parties should intend that

the subject of the grant or the land retained by the grantor should be used in some definite

and particular manner. It is not enough that the subject of the grant or the land retained

should be intended to be used in a manner which may or may not involve this definite and

particular use.”

27. There are thus two requirements for the implication of an easement of intended use:

(i) The parties must, at the time of grant, have shared an intention, either express or

implied, that the land demised or retained should be used for a particular

purpose; and

(ii) The easement must be necessary to give effect to that intended use.

28. In MONCRIEFF V JAMIESON Lord Neuberger (at paragraphs 110 and 112) distinguished rights

implied under the rule in Wheeldon v Burrows from rights which arise under the following

principle, namely that:

“the grant of an easement is prima facie also the grant of such ancillary rights as are

reasonably necessary to its exercise or enjoyment’ - per Parker J in Jones v Pritchard [1908] 1

Ch 630 at 638. Subsequently, in Pwllbach Colliery Company Ltd v Woodman [1915] AC 634 at

646 to 647, the same judge, then Lord Parker of Waddington, described the decision in Jones

v Pritchard as being within a ‘class of cases in which easements impliedly may be created’,

not because of ‘the terms of the grant itself’, but because of ‘the circumstances under which

the grant was made”…there are cases where a right is implied because it is ‘reasonably

necessary’ for the ‘exercise or enjoyment’ of an expressly granted right (as in Jones v

Pritchard). In the [this] type of case, it seems to me important to focus on the dual nature of

the requirement that the alleged implied right be ‘reasonably necessary’”.

29. Lord Hope went as far as to say that, although the extent of any right granted must be construed

in the light of the circumstances at the date of the grant:

“it is not necessary for it to be shown that all the rights that are later claimed as necessary for

the comfortable use and enjoyment of the [easement] were actually in use at that date. It is

sufficient that they may be considered to have been in contemplation at the time of the

grant, having regard to what the dominant proprietor might reasonably be expected to do in

the exercise of his right to convenient and comfortable use of the property.”

RIGHTS OF WAY BY PRESCRIPTION

30. There are currently three alternative methods of prescriptive acquisition:

(i) prescription at common law;

(ii) prescription by “lost modern grant”; and

(iii) prescription by statute (the Prescription Act 1832).

Prescription at common law

31. The rule is that a right is presumed to have a lawful origin if it has been used from time

immemorial, which means from 1189.Over time, having to prove use back to 1189 became

increasingly difficult as the date of living memory receded further into the past. In due course,

“proof of lawful origin in this way became for practical purposes impossible. The evidence was

not available”. The rigour of the rule was therefore mitigated by a rebuttable presumption of

immemorial user from 20 years’ user as of right, the period of 20 years being adopted by analogy

with the period of limitation. There is no requirement that the person claiming the easement

should be exercising it at the time when it is called in issue. However any claim of prescription at

common law is extremely vulnerable. Proof that at some time since 1189 the right could not exist

or that it has ceased to exist since 1189 will defeat the claim. In practice this means that:

(i) no prescriptive right will accrue at common law to a building constructed after

1189; or

(ii) where the two tenements have come into common ownership and possession at

some time since 1189.

Consequently, it is now virtually impossible to make a successful claim to a prescriptive right at

common law. In consequence, common law prescription may be considered, for practical

purposes, almost, if not entirely, obsolete.

Lost Modern Grant

32. The principle of lost modern grant lost modern grant concedes that user dating back to 1189 may

not be capable of proof. Instead, the law will presume, after 20 years’ user, and in the absence of

any other explanation, that a grant had been made and is now lost. The presumption that there

was a grant is an unusually strong one. It cannot be rebutted even by proof positive that no grant

was made. The doctrine was articulated by the Court of Appeal in TEHIDY MINERALS LTD V

NORMAN [1971] 2 QB 528 (at 552):

“where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such

enjoyment having the necessary qualities to fulfil the requirements of prescription, then

unless, for some reason such as incapacity on the part of the person or persons who might at

some time before the commencement of the 20-year period have made a grant, the existence

of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in

spite of any direct evidence that no such grant was in fact made.”

33. As with prescription at common law, 20 years’ uninterrupted user at any point in time will create

a prescriptive right, even if the user ceased many years ago. In modern times the courts have had

frequent recourse to the doctrine. This is in no small part due to the fact that, unlike prescription

by statute, lost modern grant does not require the period of use to have been continuing up to

the date proceedings are commenced.

Prescription under the Prescription Act 1832

34. There are two periods of prescription under the section 2 of the Act: short and long; 20 years and

40 years.

35. Short prescription prevents the defendant from contesting a prescriptive claim at common law

on the basis that the right could not have existed in 1189, thereby facilitating a claim to

prescription at common law:

(i) After 20 years’ user, a prescriptive right to an easement can arise without the

need to prove that it existed in 1189.

(ii) A right will only arise where the claimant is party to “some suit or action” in

which the right is called into issue. Until the action has been brought, the right is

inchoate only. Not only must the existence of a right be established during some

proceedings, but the claimant of the right must also show that he or she has

enjoyed the right for the requisite period immediately prior to those proceedings:

it must have been “before action brought”.

(iii) The user must have been as of right and without interruption.

(iv) There are special rules relating to the incapacity of the servient owner.

The only advantages afforded by short statutory prescription over the pre-existing law are that

the required period of use is clearly specified, and that the claim cannot be defeated by proof

that user did not exist before 1189.

36. Unlike short prescription, long prescription operates positively, the expiry of the relevant time

period giving rise to an absolute right in the claimant. Its main features are the following:

(i) After 40 years, enjoyment as of right of an easement is “deemed absolute and

indefeasible”.

(ii) As with short statutory prescription, the right will only be acquired when a legal

action is brought, and the user period must extend right up until that action.

(iii) Likewise, user must be as of right with no interruption. Some rules relating to

these requirements are specific to long statutory prescription.

(iv) There are special provisions regarding incapacity.

37. Under any of these methods the period of user must be user “as of right” that is “nec vi, nec

clam, nec precario”-openly, without force or protest and without permission.

A WORD ABOUT REGISTRATION

38. The effect of the Land Registration Act 2002 on the registration of easements and profits can be

summarised as follows:

(i) Easements and profits that are protected by registration will bind a purchaser

(section 29(2)(a)).

(ii) If an easement or profit is not protected by registration but was created before

the Act was brought into force and was an overriding interest at that time, its

overriding status will be retained (schedule 12 paragraph 9).

(iii) If an easement or profit was created after the Act was brought into force, the

amount of protection it receives will depend on its mode of creation:

(a) If it was created by an express grant or reservation, it must be registered

(even if it is granted in a lease), otherwise it will not take effect as a legal

interest (section 27) (and it will not override as an equitable interest).

(b) If it was created by any other mode (for example by implied grant or

reservation, including implication under section 62 of the Law of Property

Act I 925, or by prescription) then:

(i) if it is merely equitable, it will not override (although it can be

protected by entry of a notice on the Register)

(ii) if it is legal, it will override only if certain conditions are satisfied

(Schedule 3 paragraph 3).

The conditions required if a legal easement is to be an overriding interest and thus protected

despite a lack of registration are that they are:

(i) known to the person to whom the disposition is made; or

(ii) obvious on a reasonably careful inspection of the land; or

(iii) exercised within the year before the disposition.

39. Where title to land is not registered, the effect of an easement depends upon whether it is legal

or equitable. A legal easement binds “all the world”, in other words all who may come onto the

servient land. An equitable easement is only binding on purchasers of the servient land if it is

registered as a Class D (iii) land charge or if it takes effect by way of proprietary estoppel and the

purchaser has notice of it.

IMPLIED GRANT-AN EXAMPLE: KENT V KAVANAGH

40. This case concerned two neighbouring residential properties in Dulwich South London. In fact it

concerned a garden path some 3 ½ feet wide and approximately 20 yards long which ran

between the highway footpath and doors leading into the back garden of both properties. As I go

through the history it is perhaps worth referring to the (non-scaled!) plan which is annexed to

this Talk.

41. The freehold of both properties was, until 1976, owned by Dulwich College. In 1908 and 1909 the

Governors granted various building leases to Messrs. H.J. and A.H. Williams. The lease of No. 58

Dovercourt Road was granted on 12th November 1909 for a term of 99 years from 28th June 1908.

The plot granted was rectangular with the boundary line between No. 58 and what became No.

56 being shown on the lease plan in a straight line. There was no express grant of a right of way

over any part of No. 56. Nor was there any express reservation of a right of way in favour of the

plot that became No. 56.The building lease of the neighbouring plot No. 56 was dated 17th

December 1909 and was again granted to Messrs. H.J. and A.H. Williams for a term of 99 years

from 24th June 1908. The plot at No. 56 was and is a different shape being wedge shaped.

However the boundary between it and No. 58 was similarly shown to run in a straight line.

Similarly there was no express grant or express reservation of any right of way. At the time the

houses were constructed as is clear from the diagram (and as subsequently found by the first

instance judge) the boundary between the two properties ran along the mid line of the garden

path. However the Judge found that between 1909 and some time after 1930 there was no door

or gate which ran from the path into the back garden of No. 56. However a gate into the rear of

No. 56 from the end of the path was installed by some arrangement between the lessees of No.

56 and 58 at some time after 1930. In 1976 both properties were enfranchised pursuant to the

Leasehold Reform Act 1967. The conveyance of No. 56 is dated 14th May 1976 and was made

between the Dulwich Estate and the then leaseholder. The property was conveyed by reference

to the 17th December 1909 lease. Similarly the Transfer of No. 58 is dated 11th October 1976 and

the property conveyed is stated to be that in the 12th November 1909 lease. The present owners

of No. 58 acquired the property in 1995. The present owners of No. 56 acquired the property in

2001. They fell out when the owners of No. 58 sought to prevent the owners of No. 56 from

using the garden path to access their back garden. The owners of No. 56 issued proceedings

seeking a declaration that they had a right of way "on foot for themselves and their licensees at

all times and for all purposes connected with the use of No. 56 as a dwellinghouse to pass and

repass over that part of the pathway not within the freehold title of No. 56 (subject to a like right

in favour of the owners of No. 58 over that part of the pathway within the freehold title of No.

56"). The claim was advanced on various grounds namely:

(i) by implication in and from the lease of December 1909 and/or the

conveyance of 14th May 1976 by reason of the common law doctrine of non-

derogation from grant and/or the rule in WHEELDON v. BURROWS;

(ii) by implication in and from the lease of December 1909 and/or the

conveyance of 14th May 1976 by reason of section 62 of the Law of Property

Act 1925;

(iii) by prescription and/or the doctrine of lost modern grant by reason of 20

years uninterrupted user as of right by the [owners of No. 56] and their

predecessors in title from 1976 onwards;

(iv) by necessity.

The owners of No. 58 counterclaimed for a declaration that there was no such right and indeed

for a declaration that the path fell solely within their freehold title whether by dint of the original

transfer or by way of adverse possession.

42. Most of the trial in front of the judge was spent dealing with the claim by the owners of No. 56 to

have acquired a right of way over that half of the path owned by No. 58 by reason of prescription

and/or under the doctrine of lost modern grant. In his judgment, in effect, the Judge accepted

that there had been the necessary user between August 1976 and some time in July 1995.

However he found that by reason of a conversation or series of conversations which took place

between the owners of No. 58 and the then owners of No. 56 in 1995 any future user became

precarious. Thus he dismissed the claim for a prescriptive right.

43. However having rejected a claim based upon section 62 of the Law of Property Act 1925 because

there was no evidence that the pathway was in use as access to the back garden of No. 56 at the

time of the Transfer, the judge found that there was an implied grant of a right of way under the

doctrine in WHEELDON v. BURROWS. This was despite the fact that, at the date of the Transfer of

No. 56, No. 58 was still occupied by tenants and not by the freeholder.

44. The owners of number 58 appealed to the Court of Appeal. The Court of Appeal found that the

rule in WHEELDON v. BURROWS could not apply to a case where, at the time of the conveyance

or lease of land formerly in common ownership, the relevant tracts of land were in common

ownership but were not in common occupation.

45. Where part of land in common ownership is conveyed to a former tenant, there were of course

two distinct questions:

(i) what easements over the retained land pass with the conveyance of the freehold;

and

(ii) what easements are reserved out of the land conveyed for the benefit of the

retained land.

46. So far as the first question was concerned, in the absence of an express grant the Court found

that the answer depended on the operation of section 62 of the 1925 Act. The words of the Act

were apt to convey, with the freehold, rights of way over the retained land which are, at the time

of the conveyance, enjoyed by the tenant in occupation of the land conveyed. And whilst section

62 could have no application where, at the date of the conveyance, the two parts were in

common ownership and occupation (see SOVMOTS at page 169) nevertheless once there was, at

the date of conveyance, a separation of occupation, because part of the land in the common

ownership was held by a tenant under a lease, there was no conceptual difficulty in the

application of section 62.

47. However section 62 could not operate to reserve rights out of the land conveyed for the benefit

of the land retained. Thus the position under the general law was that a grantor who, on

conveyance of a part of his land which is subject to an existing tenancy (and over which he has

rights of way reserved in the lease) wishes to reserve those rights out of the freehold which he

conveys must do so by express words of reservation.

48. However the position so far as reservation of rights was concerned differed in the situation of

enfranchisement under the 1967 Act by reason of section 8(1) of the Act which required the

landlord to make and the tenant to accept a grant for the estate in fee simple "subject to the

tenancy and to tenant's encumbrances". A right of way in the nature of an easement, reserved

out of the leasehold interest at the time when the tenancy was granted would be a "tenant's

encumbrance" for the purposes of section 8. Thus unlike the position at common law section 8(1)

of the 1967 Act permitted a "non-express" reservation out of the freehold estate conveyed of

rights equivalent to those which had been reserved out of the pre-existing leasehold interest. As

Lewison J. observed:

“"…one would expect, therefore, that when a leaseholder of a house acquires

the freehold of that house in exercise of his rights under the Act, both the

rights which he enjoyed and the rights which bound him in his capacity as

leaseholder of the house would be carried through into his new status as

freeholder when he acquires the land on which the house is built".

49. The Court took a case where plot A and plot B had been held under tenancies from a common

owner and the tenant of each plot had reciprocal rights over the leasehold interest in the other.

On the enfranchisement of the first plot (plot A) therefore:

(i) the former tenant of plot A will continue to enjoy the rights over the leasehold

interest of plot B which he enjoyed as tenant of plot A by the operation of section

62 of the 1925 Act and section 10(2)(i) of the 1967 Act;

(ii) the tenant of plot B will continue to enjoy the rights over plot A to which he is

entitled under his lease, because those rights would be tenant's encumbrances to

which the freehold of plot A will be subject under section 8 of the 1967 Act; and

(iii) the landlord of plot B (the former common owner) will continue to enjoy the

rights over plot A which were reserved on the conveyance of that plot

(iv) On any subsequent conveyance of plot B to the former tenant the conveyance

will operate to convey with the freehold the rights over plot A which had been

reserved to the former common owner on the conveyance of plot A by section 62

of the 1925 Act and the conveyance of plot B will be subject to the rights which

the former tenant of plot A already enjoys, because the former common owner

cannot convey free from existing rights.

Thus after enfranchisement of both plots A and B the former tenants of those plots (as owners of

the freehold) will continue to enjoy the same rights over each other's plots as they did while they

were each tenants of the plots.

50. The final question was whether, at the date of their respective conveyances in 1976 Nos. 56 and

58 were entitled, under the leases granted in 1909 to reciprocal rights of way over the pathway

which lay between them. If they were so entitled, then it followed from the principles set out

above that each former tenant freeholder would continue to enjoy, and be bound by, reciprocal

rights. The Court of Appeal had no difficulty in finding that the leases of each plot in 1909 did

enjoy reciprocal rights. The Court held that, if it was the intention of the parties in 1909 that the

tenant of No. 58 should have exclusive use of the pathway, then the obvious course was to

include the whole of the pathway in the lease of No. 58. The only reason for including any part of

the pathway in the lease of No. 56 must have been that the tenant of No. 56 should be able to

use it. There was no other possible reason for the inclusion of half the pathway within the

demise of No. 56. Thus there was no difficulty in implying into each lease the necessary grant and

reservation of reciprocal rights of way so as to enable the pathway to be used as intended. The

Court referred to PWLLBACH COLLIERY CO. LTD v. WOODMAN [1915] AC 624 and found that the

reciprocal rights of way were implied as an easement of intended use.

EASEMENTS TO PARK-TWO EXAMPLES: MONCRIEFF V JAMIESON

51. This case is unusual in two respects. The first is that it was an appeal from Scotland. The second

is that the narrowness of the actual issue in dispute somewhat belies the potential breadth of

the principles enunciated in some of the speeches.

52. As the House of Lords noted (see paragraphs 46 and 107) the express grant of a vehicular right of

way does not necessarily or indeed usually carry with it a right to park vehicles on the servient

land.

53. Courts have, depending on the circumstances and since the case of BULSTRODE V LAMBERT

[1953] 1 WLR 1064, been prepared to allow temporary parking for the purposes of loading and

unloading as an implied incident of an expressly granted right of way pursuant to the principles

which I have outlined above. However there has been a debate as to whether a right to park

within a defined area can, by itself, constitute an easement. Certain judges have been prepared

to recognise that a non-exclusive right to park a car somewhere on a tract of land can be an

easement-see HAIR V GILMAN (2000) 80 P&CR 108 AND LONDON & BLENHEIM ESTATES V

LADBROKE [1992] 1 WLR 1278. However, there has always been a conceptual difficulty because

of what has become known as “the ouster principle”.

54. It has generally been accepted that an easement cannot give to the dominant owner “exclusive

and unrestricted use of a piece of land”, (see REILLY V BOOTH (1890) 44 ChD 12 at 26) However,

the precise effect of this limitation is uncertain. In COPELAND V GREENHALF [1952] Ch 488, a

claim was made by a wheelwright to a prescriptive easement to use a strip of land belonging to

the defendant, and adjacent to a roadway, to store his customers’ vehicles awaiting and

undergoing repair and awaiting collection following their repair. Mr Justice Upjohn rejected the

claim on the following basis:

I think that the right claimed goes wholly outside any normal idea of an easement, that is, the

right of the owner or the occupier of a dominant tenement over a servient tenement. This

claim (to which no closely related authority has been referred to me) really amounts to a

claim to a joint user of the land by the defendant. Practically, the defendant is claiming the

whole beneficial user of the strip of land . . .he can leave as many or as few lorries there as he

likes for as long as he likes; he may enter on it by himself, his servants and agents to do repair

work thereon. In my judgment, that is not a claim which can be established as an easement.

It is virtually a claim to possession of the servient tenement, if necessary to the exclusion of

the owner; or, at any rate, to a joint user, and no authority has been cited to me which would

justify the conclusion that a right of this wide and undefined nature can be the proper

subject-matter of an easement. It seems to me that to succeed, this claim must amount to a

successful claim of possession by reason of long adverse possession.”

As HHJ Baker put it succinctly in the LONDON BLENHEIM case:

“If the right granted in relation to the area over which it is exercisable is such that it would

leave the servient owner without any reasonable use of his land, whether for parking or

anything else, it could not be an easement though it might be some larger or different grant.”

55. The clearest modern illustration is BATCHELOR V MARLOW (2001) 82 P&CR 36. In that case the

defendant owned a dirt road. The respondent, who ran a nearby garage claimed to have

acquired a prescriptive right to park up to six cars on the verge of the road between the hours of

8.30am and 6.30pm Monday to Friday. The Court of Appeal rejected this claim to an easement. It

applied the test set out by HHJ Baker and asked itself the question: does an exclusive right to

park six cars for nine and a half hours every working day leave the defendant without any

reasonable use of his land whether for parking or anything else? They answered that question in

the affirmative.

56. And so to the Moncrieff case. The facts were simple. It involved a house called “Da Store”

situated in the Shetland Isles. The house and garden had previously been part of land owned by

the defendant. It was sold off in 1973. It was situated at some distance form the nearest public

highway and thus the 1973 conveyance granted to the owners: “a right of access from the branch

public road.” The house lies at the foot of a steep escarpment on the foreshore. There is

pedestrian access over the defendant’s land by one route. Vehicles cannot be driven onto any

part of the land and there was only one means of vehicular access over another defined route. It

was common ground both that the owners of Da Store had an express vehicular right of way over

the defendants land and that the express right of way carried with it an implied right to stop

vehicles on the servient land in order to turn, load and unload. However the dispute arose

because the owners of Da Store claimed for themselves and their licensees a right to park

vehicles on that part of the servient land closest to Da Store generally. They claimed it in two

subtly different ways. Firstly they claimed that the right to park was implied as a necessary

ancillary right to their expressly granted vehicular right of way (but not an easement in itself).

Secondly, and in the alternative, they claimed that the express grant of the vehicular right of way

carried with it an implied easement to park.

57. The House of Lords, with varying degrees of enthusiasm, held that there was such a right to park

implied into the express right of way because it was “necessary for the comfortable use and

enjoyment of the right expressly granted”. Thus far the case is simply an illustration of the grant

of an implied easement.

58. However, the interesting point arises from the fact that one of the arguments raised by the

defendants was that, as a matter of law, the right to park could not be an easement at all. All of

their Lordships held that it could. Lords Hope and Rodger held that it could be so under the law

of Scotland (paragraphs 22, 24 and 75) whilst Lords Scott and Neuberger held that the same

applied under English law (paragraphs 47, 102 and 136 to 140).

59. Lord Scott dealt at length with the ouster principle. He went so far as to suggest that the test set

out in the LONDON & BLENHEIM case as applied in BATCHELOR V MARLOW was wrong. He

doubted whether this test of ‘degree’ was appropriate, not only because of its uncertainty and

difficulty in application but also because of its focus. He believed that it should be rejected, and

replaced with a test which asks (paragraph 59):

“whether the servient owner retains possession and, subject to the reasonable exercise of the

right in question, control of the servient land”

In his view, sole use of a tract of land by a dominant owner to park a vehicle was not inconsistent

with a servient owner’s retention of possession. Thus presumably, in his view, a right to park a

single vehicle in a designated spot was capable of being an easement. Nor, he said, is there any

difference between the characteristics of an easement acquired by express grant and those of

one acquired by prescription.

60. Lord Neuberger was more circumspect. He said (at paragraph 137):

“In my judgment, the grant of a right to park a single vehicle anywhere on a servient

tenement which is large enough to hold, say, twenty vehicles, must be capable of being a

servitude or an easement. In such a case, there is no specific place where the vehicle is to be

parked, so that there is no specific area from which the servient owner can be said to be

excluded….”

He continued:

“…If the right to park a vehicle in an area that can hold twenty vehicles is capable of being a

servitude or an easement, then it would logically follow that the same conclusion should

apply to an area that can hold two vehicles. On that basis, it can be said to be somewhat

contrary to common sense that the arrangement is debarred from being a servitude or an

easement simply because the parties have chosen to identify a precise space in the area, over

which the right is to be exercised, and the space is just big enough to hold the vehicle… At

least as at present advised, I am not satisfied that a right is prevented from being a servitude

or an easement simply because the right granted would involve the servient owner being

effectively excluded from the property.”

He concluded (at paragraph 143):

“Accordingly, I see considerable force in the views expressed by Lord Scott in paras 57 and 59

of his opinion, to the effect that a right can be an easement notwithstanding that the

dominant owner effectively enjoys exclusive occupation, on the basis that the essential

requirement that the servient owner retains possession and control. If that were the right

test, then it seems likely that Batchelor v Marlow was wrongly decided. However, unless it is

necessary to decide the point to dispose of this appeal, I consider that it would be dangerous

to try and identify degree of ouster is required to disqualify a right from constituting a

servitude or easement, given the very limited argument your Lordships have received on the

topic.”

61. It seems to me that Lord Scott’s formulation is coherent and better accords with principle. There

is a well defined difference in principle between “occupation” on the one hand and “possession”

on the other (see e.g. AKICI V BUTLIN *2006+ 1 WLR 201). It’s the difference between a licence

and a tenancy. Parking on any particular tract of land is always going to deprive the owner of

occupation for the duration of the parking. Thus to recognise the easement to park at all is to

recognise as an easement a right which deprives of occupation. It is much more coherent and

certain to ignore any deprivation of occupation and concentrate on whether, despite the parking,

the freehold owner retains possession at law.

62. However, it has recently been held (by HHJ Purle in VIRDI V CHANA [2008] EWHC 2901) that the

comments of Lord Scott were obiter and that Bachelor is still good law. The argument on the so-

called “ouster” principle was resumed in the last case I want to look at.

ANOTHER EXAMPLE: SAFESTORE V RSN

63. This was a case heard by HHJ Cowell in the Chancery list of the Central London County Court.

Judgement was given in October 2009. It appears to be the first fully reported case in which a

right to park has been held to have been acquired by prescription.

64. To simplify the facts somewhat, they were as follows. There is another plan annexed to this

paper. A right to park was claimed by prescription and the doctrine of lost modern grant by four

freehold owners of commercial premises all of which fronted a private road in Acton. This road is

a cul de sac running south from the public highway. It was not and never had been adopted. The

road was owned by the Defendant. An associated company of the Defendant owned substantial

commercial premises at the end of the road from which it ran a milk processing business. This

required access along the road by HGVs and tankers.

65. The freeholders each had an express rights of way over the northern part of the road. However

the evidence clearly showed that the employees and customers of the freehold owners and their

predecessors in title had, for nearly forty years, regularly parked cars and vans on the road

immediately outside their respective premises and, if not there, then on other parts of the road.

This parking was for more than merely loading and unloading. The Defendant, whilst accepting

that the freeholders had a right to stop to load and unload, wished to stop the parking as it

claimed that it interfered with access to the dairy premises by the various tankers and HGVs. The

judge held that each of the landowners had acquired a right to park on the road.

66. There are a number of interesting aspects to this case as the judge had to deal with a number of

different arguments raised by the Defendant as to why there was no easement to park.

67. The first argument was based on the “ouster” principle. The evidence showed that parking had

occurred constantly outside the various freeholds between 7.00 am and 9.00pm and, on

occasions, even earlier and later than that. This effectively prevented the Defendant (or indeed

anyone else) from either parking on or driving over those parts of the road. The Defendant said,

preying in aid BATCHELOR V MARLOW, that the parking thus deprived it of any reasonable use of

the land. The judge dismissed this argument. He held that, whether one applied the test in

BATCHELOR V MARLOW or that in Moncrieff did not matter on the facts of this case. The

freeholder and its associated company in fact used the road late at night and early in the

morning to access the dairy premises. HGVs could and did park on those parts of the road and

drove over them during hours of the day when there were no other cars parked on them. Thus it

was deprived of neither all reasonable use nor possession.

68. He also rejected the argument that the area of the servient land was insufficiently well defined.

Although the freeholders had claimed a right to park along the side of most of the road, the

judge restricted their claims to that part of the road (in effect a cars width) immediately outside

each of their premises.

69. In the original conveyance of each freeholder, along with the grant of an express right of way

over the road, there was an obligation on the part of that freeholder not to park on or obstruct

the road. The judge held that the fact that the parking from which the prescriptive right was

derived had been in breach of that covenant did not prevent the right arising. A landowner can

(and indeed to a certain extent must) acquire an easement by prescription through conduct

which is unlawful or in breach of contract (see BAKEWELL V BRANDWOOD [2004] 2 AC 519 and

WILLIAMS V SANDY LANE [2007] 1 P&CR 27 (at paragraphs 48-50).

70. The judge also rejected a more interesting and subtle argument. The Defendant, as freehold

owner of the road, was itself subject to covenants made by its predecessor in transfers of

neighbouring land and before any of the relevant transfers to the freeholders. These covenants

obliged it not to park or allow parking on the road. Thus owner of the road was bound by

covenants with third parties not to permit anyone to park on the road. In order for an easement

to have been acquired by prescription and/or by lost modern grant, there must have been at all

times a competent grantor-see GALE paragraphs 3-04 and ff. This can apply where the grant of

an easement would be a derogation from grant-see BEDDINGTON V ATLEE (1887) 35 ChD 317. In

RHONE V STEPHENS [1994] 2 AC 310 (at 317) the House of Lords described the effect of a

restrictive covenant in equity as preventing a successor in title to the covenantor from exercising

a right that he had never acquired. It was thus argued that, in the light of the pre-existing

covenants on its part not to permit parking, Johnson Limited was not a competent grantor as it

could not lawfully have granted the claimed rights. Thus, it was said, there could be no

easements acquired.

71. The judge accepted the contrary arguments to the effect that the rule that there can be no

prescriptive acquisition of an easement where there was no competent grantor relates to the

legal capacity of the owner of the servient land to grant the claimed easement-see BAKEWELL V

BRANDWOOD (at paragraphs 27-32, 39, 46, 49-50, 55 and 59), HOUSEDEN V WIMBLEDON

CONSERVATORS [2008] 1 WLR 1172 (at paragraphs 54-5, 66 and 69) and GALE at paragraphs 4-

59-60 and 4-71-5. Thus provided the owner of the servient land could dispose of the freehold

and lawfully grant the claimed right expressly, then the right can be claimed by prescription. It is

only if the presumed grant would have been void or a nullity that a prescriptive right cannot

arise. The Judge also found that there was no one who could effectively enforce the covenants as

a matter of fact.

72. Finally, the judge was prepared to approve a scheme whereby the freeholder could control the

parking by the freeholders along the road. The key was the “civiliter” principle identified by Lord

Scott at paragraphs 45 and 53 in Moncrieff. The owner of the servient land is entitled to limit the

exercise of his rights by the dominant owner to a “reasonable use” which does not unduly

interfere with the servient owner’s enjoyment of his own land.

73. Courts have been prepared to countenance the imposition of traffic control measures and

parking schemes by servient owners in a variety of situations-see PETTEY V PARSONS [1914] 2 Ch

653, SAINT V JENNER [1973] Ch 275 CELSTEEL V ALTON HOUSE [1985] 1 WLR 204 and MONTROSE

COURT V SHAMASH [2006] EWCA Civ 251. The Court of Appeal would not however approve a

scheme which unduly restricted the number of spaces available to the tenant with the benefit of

a grant in a lease of a right to park in SAEED V PLUSTRADE [2002] EGLR 19.

74. In the Safestore case the Judge, as well as restricting the right to park to the areas immediately

adjacent to the dominant owners respective freeholds, allowed the freeholder of the road to

impose a scheme: restricting the hours during which parking could take place to between 8.30

am and 9.00pm; compelling those parking on the road to display (free) parking permits; involving

the clamping and towing away of vehicles parked without a permit displayed for over 20

minutes.

DAVID HOLLAND

LANDMARK CHAMBERS

© David Holland 2010

This seminar paper is made available for educational purposes only. The views expressed in it are those of the author. The contents of this paper do not constitute legal advice and should not be relied on as such advice. The author and Landmark Chambers accept no responsibility for the continuing accuracy of the contents.